Dr. King & the Public Domain

Every time a Martin Luther King anniversary comes around, the anti-copyright armada is well armed with blogs and articles decrying the indecency that the civil rights leader’s words and recordings are not in the public domain. And never one to miss such an opportunity, even while missing the point, Mike Masnick at Techdirt insists that Dr. King’s “I Have a Dream” speech should no longer be protected by copyright controlled by the King estate.

You know the speech, right? Who doesn’t? We celebrated it’s 50th anniversary yesterday, and it’s only one of the most famous pieces of oratory in world history. Yet, despite the fact that Dr. King’s words managed to attain osmotic universality long before the invention of YouTube, one gets the idea from reading Masnick’s post that without “sharing” the speech through social media, it might simply vanish into oblivion.

I understand the sentiment. After all, these words feel like public property, and they were among the many gifts King gave to humanity. So, is it really fair that the King family can manage or even license this speech and “sully” its legacy with money? It is. And the primary reason should be obvious: because YouTube doesn’t belong to the people, it belongs to Google; and Google monetizes every click. That means Masnick’s idealistic musings that sound humanistic are already sullied with money, except that in his world, the money would be Google’s, and the King family would get zip. How is that more fair or better serving the public interest?

The internet industry has done such a thorough job of telling people that the web belongs to all of us, we actually believe it. Masnick’s title “Let Freedom Ka-Ching” is admittedly clever, but it’s also hypocritical. He mocks the tawdry commercialism of licensing King’s emancipating words for use as a ringtone and cites Professor Boyle of Duke University, who also mocks such use; but why is the alternative better? If I made an homage mash-up that earned millions of views on YouTube, why would it be any less tawdry for Google to advertise fast food against it? Go a step further: what if a white-supremacist group creates a racist mash-up with the speech that generates millions of views, and Google sells ads against that? The King family would be powerless to do anything about it, and Google would keep the video online because it’s “free speech.” Ka-ching!

We keep forgetting that copyright is often about preserving the integrity of works, and not just about money. Estates have long played the role of curators who protect the legacy of authors’ works, and we dismiss the value of this at our peril, even as we mock the idea of “I Have a Dream” as a ringtone. I happen to think a ringtone is not a bad use as uses go, but that’s another conversation.

The web moves fast, it favors what “trends” and not necessarily what endures. There is no evidence to suggest that my fellow Americans are any more enlightened or have more ardently embraced the goals of the civil rights movement because of social media and so much jittery sharing of things. Worse yet, can we say for certain that a generation or two from now, the legacy of King would not be mangled through reuse beyond all recognition? The answer is no we can’t say that for certain because we’re making assumptions based on technologies and social trends that are less than a decade old. And we have seen plenty of evidence that what goes viral is not always accurate or valuable.

I for one think Martin Luther King, Jr. already gave us plenty; and access to his works is anything but limited. You might have to get off your butt and go to the library, but considering how far he walked, that doesn’t seem like a lot to ask.

This reminds me of a conversation I had with a friend in Sweden about famous author Astrid Lindgren. She has sold 145 million copies worldwide and has been translated to over 95 languages. Someone said that her copyright is no longer needed now when she’s dead. But they ignore the fact that it’s only because of copyright that we even know of her stories. Copyright has not only payed Astrid’s bills during her life. Her copyright has payed millions of man-hours over the years with one goal, spreading her work. And every day her books are still finding new readers. This work continues even though she’s dead.

No one seems to put two and two together. King’s speech has always been protected. And it’s one of the most well known speeches in the world. It’s not clear what would have happened without that protection.

“Free” in the freetard movement just means >Google shouldn’t have to pay for the things it sells ads against (and rarely does…)
Short-sighted, locust-infestation thinking.
Dr. King’s legacy is known and celebrated. His gift endures. With or especially WithOUT the internet money-grubbers taking their undeserved share. If we were to start making exceptions where if something is SO popular or meaningful that it no longer carries rights… that would have a very detrimental negative effect on the aspirations of creators. And where would we draw the line? Ridiculous IMO.
King’s heirs have every right to control and monetize (if they so choose) their inheritance, just like any other heir of valuable property. You don’t see anyone telling Paris Hilton that all hotel rooms should be free, do ya!

on second read, i want to clarify that i am in NO way comparing Dr. Kings’ heirs to Paris Hilton –in any other way than they inherited something (probably could have thought up a better example…)

MLK was [and is] very important. As you mentioned, David, with the Copyright laws of today… there seems to be nobody kept from the knowledge and message he had suffered to share. The ONLY people that are harmed by copyright, are those who are looking for ‘free money’ off the labor of others. That is all.

Masnick can only get away with this because people truly
think of Youtube and even torrent sites as charities, when they are
absolutely not. It’s like with athletes: their salary demands seem
ridiculous until you realize what the team owners and broadcasters
are making off of them.

Fair use explicitly exists to permit unauthorized uses of a copyrighted work that harm the integrity of the work (parody, criticism, etc.). The more you can prove this purpose, the more likely that use falls under fair use. Cheers.

There are some pretty famous court cases involving the fair use defense that establish the idea that the integrity of a copyrighted work is not scared.

In fact, fair use is an affirmative defense for especially for uses which violate the integrity of the work. If the defendant can be shown to working in the interests of violating the integrity of the work, the fair use defense is stronger (ie. if it does not violate the integrity of the work, it is more likely to be copyright infringement!). One famous example is Mattel Inc v. Walking Mountain Productions. In the case, the judge found that the art in question did in fact defame/devalue and criticize the Barbie brand. And because of this, the artwork was fair use. That’s key.

Why is this so? Because if something doesn’t damage the integrity of the work, the chances of acquiring a license from the copyright holder for a derivative use is higher.

Thus fair use especially applies in the cases where a license grant would be unlikely, especially in cases where it is not in the interests of the copyright holder to provide a license. For example, because that work would be damaging to the integrity of the work.

As mentioned in the past, I really think if you want to debate the law itself, I’d recommend blogs hosted by lawyers or legal scholars. I write about these things from a cultural, layman’s perspective. For instance, when Masnick whimpers about social implications of King’s copyrights, which I consider utter nonsense, I write a post like this one. If you want to argue the purpose of fair use, which is a component of copyright law, you’ll get a much better debate from people who know case law better than either one of us.

Except that Masnick is not talking about parodies. He’s talking about someone putting up the speech, turning on the ads and watching the revenue come in. If MLK’s speech should be public domain, then make it truly public domain, so that Youtube is not able to profit from it.

True. If you take someone work and copy substational portions verbatim as well as profit off it, it’s very hard to argue that is fair use. But David’s argument about skinheads mashing up/paroding up MLK’s speech to promote their agenda probably is. And as it should be. Because free speech is not about protecting speech agreeable speech, but chiefly about protecting disagreeable speech. And fair use is at its core a limitation on copyright to protect free speech.

You’re right about free speech, of course, but are also making a mash-up of that principle and fair use. Again, my point is not whether it would be legal for white supremacists to produce such a thing under fair use or whether it would be protected speech. If there were no copyright violation, both would be true. My point is that I find it laughable to suggest that YouTube or social media in general will magically unleash the otherwise obscure works of MLK. The supremacist example merely points out one way in which YouTube can make matters worse from a cultural standpoint and that Google gets to profit no matter what.

I would not vote to take away the King family’s copyright on their patriarch’s words. However, I would perhaps encourage them to let go of it, or perhaps sell it to a philantropist or foundation that does pledge to put it into the public domain. Or perhaps the speeches etc. could be offered under a shareware license, such that republishing is encouraged for free so long as the words are not taken out of context or used for profit. My reasoning is that MLK’s words are not a ditty or an entertaining novel. They are a part of a living history, and they are a part of a movement that goes on to this day, one which needs many of these words to be repeated and shared over and over again to continue to make the change happen. This far transcends and makes minuscule the issue of intellectual profit. Some ideas are simply meant to be shared. I do not believe that MLK spoke his words in order to make money for himself or his family. He spoke them in order to change the world, and quite frankly, I believe that is what he would want them to continue to do. I suspect that encouraging this in the right way might also bring in more good karma, including whatever lucre is needed, than selling or jealously guarding MLK’s words ever could.

I appreciate and agree with the sentiments, but the point of the post specifically takes issue with Masnicks overblown and Google-serving premise that MLK’s words are somehow unavailable absent technologies like YouTube. The family’s rights and decisions are almost secondary in this context. The push from the internet industry is to make EVERYTHING public domain because that serves their bottom line. My point is that, regardless of the role of any rights holder per se, this is a potentially damaging idea predicated on a false premise. The false premise is that more diffusion through these media makes a more enlightened public, and I’ll bet anything that King’s influence has been relatively flat for decades (i.e. that his words were as much a part of our consciousness in the pre-digital era as they are now). To imply that King becomes more relevant, that America might become less racist, if people are more “free” to share his speeches via social media is naive to the point of childishness. King’s works are freely available to anyone who cares to know them, and no American is too deprived to have access. One question is whether or not people are more or less consciously aligned with King today than they were in, say, 1986? Regardless of the answer, I would argue that neither the family’s copyrights nor social media has much to do with it. No matter what, why should Google be allowed to freely monetize King’s works or potentially some remix of his works that actually betrays their meaning or intent?

Families have long been stewards of their forebears’ works. Some have done a good job, others not so much. But in most cases, I think it’s been good for society that descendants have played this role. Masnick makes a ringtone sound unpalatable and grubby, but is it really a bad use in these digital times? I’m sitting in a coffee shop right now, and if some teenager’s cell rang with “I have a dream…” instead of a tune from One Dimension, I’d smile, not cringe. Ringtones are ways in which people imprint their personalities on their otherwise homogenous devices that are, for better or worse, extensions of themselves. And if this is normal and not harmful to King’s legacy, why is it not better that the estate receive some compensation then that AT&T can use it at will?